By Eric Glazer, Esq.
Everyone knows that whether you live in a condominium or an HOA, your association has an obligation to provide the unit owners access to the association’s records. What is an association to do however with the owner that won’t stop asking for access? Week after week, month after month, year after year, the requests don’t stop coming in. Is there anything an association can do?
Both the Florida Condominium Act and the Florida Homeowner Association Act provide that:
The association may adopt reasonable rules regarding the frequency, time, location, notice, and manner of record inspections and copying.
The question is what is a “reasonable rule?”
In Wanda DiPaola Stephen Rinko General Partnership v. Beach Terrace Association, Inc. Case No. 2007-02-2785, the Petitioners made 6 records requests over a five month period. The association had a rule in place that required the owners to submit a written request stating the purpose of the inspection and provided that no more than two requests to inspect the records would be allowed in a six month period. The arbitrator made it clear that there is nothing in the statutes that prohibits an owner from making repeated requests for access to records. Moreover, although the statute does authorize the association to adopt reasonable rules regarding the frequency of record requests, the restrictions cannot substantially erode or eliminate a unit owner’s right of access. Whether a rule is reasonable depends upon the facts and circumstances of each case. In the end, the arbitrator held that the rules in this case place substantial and unacceptable restrictions on a unit owner’s right of access to official records. The arbitrator also held that an association cannot refuse access to official records on the ground that access was previously provided.
Two years later, in Rosado v. Fountains of Tamarac Condominium Association, Inc. Case No. 10-03-1036, the Board adopted a new rule limiting review of records to five files for each scheduled records inspection. Files were arranged by topic. The association was self managed and the records were stored off site. Records inspections were only allowed every Tuesday morning during normal business hours. In this case, the arbitrator opined that the association could make things easier on itself by storing the records electronically, but on the other hand, some records need to be viewed in its original paper format, like election records. In this case, the arbitrator held that since the association has only 32 units, the records should be able to be inspected in a two hour period, if they are limited to five or fewer topics. Therefore, this rule does not substantially erode or eliminate a right to access and is therefore reasonable.
Two years later, in Nevin v. Tennis Club McLoughlin Condominium Association, Inc. Case No. 12-00-3369, the Petitioner made 10 separate voluminous records requests over a three month period. On the date of the very first records request, the Association amended the rules and regulations to limit unit owner requests for association records to “one item per month.” Therefore, the association did not comply with all of her requests within five days as normally required under the statute. The arbitrator held that the rule limiting access to “one item per month” places substantial and unacceptable restrictions on a unit owner’s right to official records and the association has created an unreasonable restriction on her right of access. In fact, the rule virtually negates the Petitioner’s right of access to the records.
Before your Board attempts to pass a rule limiting access to records, you may want to get some legal advice, because if the rule is found to be too restrictive, it could cost the association a lot of money. In the Nevin case, the arbitrator awarded the unit owner $5,000.00 in damages. In addition, an association can be required to reimburse the owners all of his or her attorney’s fees and costs.
So tell me……does your community allow you reasonable access to the association’s records?